# FILED
February 24, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9709-CR-00412 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, JOHN EARL SC

ALES, ) JUDGE ) Appellant. ) (First-Degree M urder and Attempt ed Aggravat ed Robbe ry)

FOR THE APPE LLANT: FOR THE APPELLEE: RAYBURN McGOWAN, JR. JOHN KNOX WALKUP 500 Wilson Pike Circle, Suite F-218 Attorney General & Repor ter Brentwood, TN 37027 (On Appeal) KAREN M. YACUZZO Asst. Attorney General DAVI D I. KOM ISAR John Sevier Bldg. 211 Printer’s Alley Bldg., Suite 400 425 Fifth Ave., North Nashville, TN 37201 Nashville, TN 37243-0493 (At Trial) VICTOR S. JOHNSON, III District Attorney General JOHN C. ZIMMERMANN Asst. District Attor

ney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37201-1649
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was convicted of firs t-degreefelony murder and attempted aggravatedrobbery. F ollowing a senten cing hearing,he was sentenc ed to life imprisonment

for t he murder

conviction and a concurr ent three year term for the attempted aggravated robbery conviction. After his motion for new trial w as denied, the defendant filed a notice of appeal with this Court. He presents the followingissues for review: I. Whether the jury’s verdict was contrary to the weight of the evidence; II. Whether his trial counsel rendered ineffective assistance; I II. Whether the trial court erred in faili ng to give a curati ve instruction i n response to comme nts Vera T hompson made dur ing her tes timony; IV. Whethe r the investigating police officers engaged in misconduct by failing to recover survei llance tapes that the defendant argues

would have helped him establish his ali bi defense; and V. Whether the trial court erred in denying the defendant’s motion for new trial on newly di scovered evidence. Finding no merit to the defendant’ s claims, we affirm his con victions and sentence.

In the early evening of Wednesday, December 13, 1995, around 6:00 or 6:30 p.m ., two men approached Vera Thompson and Alvi n Bevels, who wer e sitting on the patio ofThompson’s apartment. At least one of the men carried a gun. They asked Thompson and Bevels for their money and began going through Bevels’ pock ets. When Thompson spoke to one of the men as if she recognized him as a former ne ighbor in the apartmentcomplex, the men walked away. They then confronted Chester Marti n and his friend. They told Martin to “s et it out,” which appar

ently meansto give them t heir mon ey, and began to go through his pockets. When Mar tin asked them if they wer e “tripping,”
one of the robbers said, “You think you’ re sma rt.” Martin was then shot, and as he attempted to run away, he w as shot again.3 After talking with several witn esses, who gave “real consistent” descriptions of the shooter, the police believ ed the shooter to bethe defendant, who had previously lived in the apartment complex w ith his sister, Nic

ole Scales. In an effort to prepare a photographic line-up, the police went to Nicol e’s new residence. The police told Nicole about the murder, including the approximate time it occ urred, and advised her that they
were attempting to eliminate her brothers as suspects. At the time, the defendant was in the room, and although the police did not askhim any questions, he v olunteered that he had been at Nicole’s residen ce the entire day and eve ning. Nicole and Lamont, one of the defendant’s brothers, agreed the defendant had been home with them all n ight.

Two eyewitnesses w

ho lived at the apartment compl ex where the shooting occurred, Vera Thompson and Ang ela Hornbeck, identified the defendant in a photographic line-up. John Alexander, Jr., who was Martin’s companio n when he was shot, was also shown a phot ographic line-up that i ncluded the defendant’s picture, but he could not identif y anyone. T he man ac companyi ng the defendant was never identified.

The State’s theory at tri al was that the defendant attempted to rob Bevels and shot Martin because he w as “strung out” on cra

ck cocaine and needed money to support his habit. Thompson testified she was sittin g on the patio of her apartment enjoying a “cup of beer” with Bevels w hen two black males

with a gu n approached them. Tho mpson identified the defendant as one of the men, but she did not know the other. According to Thompson, the defendan t was wear ing a jacket with a hood that was trimmed with fur, but when he approached them, the hood was not on his head

. Thompson testified she knew the defendant because he had prev iously lived nex

t to her in the apartment complex, but the defendant did not appear to

recognize Thompson, who
was not wearing her gla sses atthe time. Thompson testified she beli eved the defendant4

was playing a joke on them w ith a fake gun, but Bevels t old her to take the men seriously because the gun was

real. According to Thompson , she asked the defendant why he no longer visited the neighborhood, which prompted the defendant to recognize her, say to his companion, “Come on, man; let’s go,” pull the hood over his head,and walk away from them. Thompson testified she then witnessed the defendant and his compani on accost another set of individuals entering the apartment complex. Thompson testified she saw the defendant pull a g un and shoot the victim tw ice.

Bevels’ testified that two males, one dark-skinned ando ne light-skinned, approache d him whi le he sat with Thompson on her patio. Bevels identified the defendant as the dark-skinned male and t estified that altho ugh the defendant was
wea ring a blu e hood when he approached him, the d efendant’s face remained visible

. According to Bevels, the defendant held a pistol in his stomach and said, “You know what it is.” Bevels testified he told the defendant he did not have anything , and the defendant checked his pockets. According to Bevels , when Thompson spoke to the defendant, the def endant appe ared to recognize her, and as a result, retreated.Bevels testified the defendant and his companion then approached M artin and Alexander, held a pistol to Martin as if to rob him, and then shot Martin twice.

Hornbecktestified that on the night of the shooting, she was near the window in her second-story apartment when s he saw a dark-skinned man wearing a blackhooded jacket , carrying a gun, and scuffling with one or two other people. According to Hornbeck, she heard tw o gunshots shortly ther eafter

. She testified that because the man with the gun “tur ned right into the lig ht under [her ] window,” she recognizedhim as a former res ident who had lived in the apartment complex with his sister, Nicole. Hornbeck identified the defendant as th e shooter.5 To defeat the testimony of these three ey ewitnesses, the defendant relied upon an alibi defense. Alexan der, Martin’s companion w hen he was shot, testified he h ad mad e eye contact with the shooter and that the shooter was a light-skinned black male, not a dark-skinned black male. He could notidentify the defendant as the shooter.

T erry Meese testified that on December 13, 1995, around 3:30 p.m., h e visited the defendant athis apart ment and within the next hour, they went to a Pharmart convenience store, where they pu rchased so me soda. According to Mees e, they then returned to Meese’s apartme nt, where they watched television throughout the early evening and ate a supper Meese’s gi rlfriend prepared. Meese testified that the defendant then took

a short nap and left his apartment around 9:15 p .m. Meese’s girlfrien d and the defend ant subs tantiall y corrobor ated thi s testimo ny.

A manager at the Pharmart conv enience store testified that Meese came to the store on Friday, December 15, 1995, and asked for the surveillance tapes from the afternoon of December 13. According to the manager’s testimony, she told Meese that she could rel ease the sur veillance tapes only

to a police officer. Meese tes tified that when he learned the defendant had been arrest ed for murder, he contacte d Detective Rol and of the Metropolitan-Nashv ille Police Department and told him that survei llanc e tapes at the Pharmart convenience stor e would prove that he and the defendant had been there December 13. O fficer James Scales of the Metropolitan-Nashville Police Department, one of th e defen dant’s br others, a lso testi fied tha t he calle d Detecti ve Roland as soon as he learned of the defendant’s a rrest. According to Officer Scales, he called Detective Rol and in order to get more informationon the arrest, to tell hi m about the surve il lance tapes, and to give him names of alibi witnesses , but Detective Roland became agit ated by this information and by Officer Scales’ questions.According to Officer Scales, when he aske d Detecti ve Roland if he was plan ning to retrieve the6

surveill ance tapes, Detective R oland hung up

on him.

Detective Roland testified that Offic er Scale s called h im on Frid ay, December

15, to give him names of alibi witnesses, but

he first learned of the possible existence of surveillance tapes on December 18, when Meese c alled him. According to Detective Roland, he then called the Pharmart store and spoke with a clerk, who told him that she did not have access to the surveillance tapes and that he needed to talk with a manager. Detective Roland testified he left a message for the manager, and when he finally spoke with her onDecember 21, she informed him that the tapes were no longer available and that even if they had been available, they would not have reflected the date
or whether th e time was a .m. or p.m. According to the Pharmart manager, approximately
one week passed between the time she spoke with Meese and a police officer contacted her about ge tting a copy of the surveillance tapes, but by then, the tapes were unavailable because they had been taped over, erased, or otherwise destroy

ed.

Several people acquainted with the defendant testified that the defendant did not appear as if he took drugs.The defendant himself te stified he w as not a drug addict and had not been using crack coc aine within six months of the murder, alt hough he did admit to using marij uana at least twice a w eek during that time. He denied kill ing Martin and testified he was with Meese when the shooting occurred. The defendan t also testified that on th e night of the murd er, when De tective Roland and other police officers visited his sister Nicole’s re sidence, he sai d he had been a t her residence t hat evening, but he did not indicate how long he had been there. He testified that when he talked with the police that evening, i t had “slipped [his] mind” he had been with Meese at the time the shooting occurred because, accordi ng to the defendant, he was dist racted by his curiosity why the police were inte rested in where his b rother Lamont had been that evening.7 I.

The defendant first argues that the verdict is contr

ary to the weight of the evidence, in that the testimo ny of his a libi witnes ses “obje ctively” outweighs the testimony of the Sta te’s eyewitnesses. The defendant doe s not challenge the sufficiency of the evidence. Questions concerning w itnesses’ credibilit

y, the weight and

value g iven to evidence, and all factual issues raised by the evidenc

e are resolved by the trier of fact, not by this Court. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). While the trial court may sit as “thirteenth juror” and grant a new trial if it disagrees with the jury about the weight of the evidence,Tenn. R. Crim. P. 33(f), th is Court may not, Cabbage , 571 S.W.2d at 835. For this reason, th e defendant’s argument must fail.

II.

The defenda nt nex t argues that the ineffectivene ss of his trial counsel entitles him to a new trial. According to the defendant, his trial counsel, David Komisar,
was ineffective because he failed to obj ect or move to strike w hen Thom pson made “highly prejudicial” statements during her testimony; fai led to attack Thompson’s credibil ity byquestion ing her a bout her criminal record;and failed to object to questi oning during the defendant’s testimony regar ding the method he employed touse crack cocaine. The defendant also argues that the attorney appointed to rep resent him duringthe preliminary hea ring, Bobby Ballinger, was ineffective for failing to obtain the Pharmart surveillance tapes.

In challengingthe effectiveness of counsel, the defendant has the burden of establishing that he received deficient representation and that this deficiency8

prejudiced him. Strickland v. Washington , 466 U.S. 668, 686 (1984); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs w hen counsel provides assistance that falls below the r ange o f competence demanded of criminal attorneys. Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prej udice is the reasonable likelihood that but for deficient representation, the outcome of the proceedings would have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satis factory representation. Barr v. State , 910 S.W.2d 462, 46 4 (Tenn. Crim. App. 1995).

When determinin g whet her counsel’s performance was deficient, “every effort [must] be made to elim i nate the distorting effects of hindsi ght, to reconstruct the circumstances

of co uns el’s challenged conduct, and to evaluate the conduct from
couns el’s perspect ive at the time.” Strickland , 466 U.S. at 689. “Thus, the fact tha t a particular

strategy or tact i c failed or even hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Further, unle ss the de fendant carries his burden to show that the evidence contained in the record preponderates agains t a tria l court’s findings of fact, those findings are conclusive. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn . Crim. App. 1991); Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).

H ere, at the conclusion of the hearing on the defendant’s mot ion for ne w trial, in which the defendant raised the issue of in e ffective assistance, the trial court’s findings of f act included th e following:

Mr. Komis ar testif ied, and I believe it to be true, that he spent over a hundred hours in preparation.Moreover, at his reques t, the Court permitted the hiring of Jim Ball. Jim Ball is a former Metro H omicide detective; and I ca n te ll you , from -- from personal association with Mr. Ball at -- at the Metro Polic e Department, he’s one of the most effectiv e, best criminal investigators I ever saw in any context.9 Mr. Ball, I assume, earned the thousand dollars that I authorized to be paid to him for his investigative work. Mr. Komisar has experience in the State Attorney General’s Office, he w as a former Assistant District Attorney, and has been in priv at e practice now for some years, and is an experienced and capable lawyer. And that experience and abili ty were certainl

y pre sent in the representation of Mr. Scales. Mr. Scal es gota firs t-class defense at the hands of Mr. Komisar. The -- I think the record will reflect that none of the allegations about his shor tcomings are -- are, i n fact, true. And I find, as a matter of fact, that Mr. Komisar did an excellent job of representing Mr. Scales and that it was far beyond that normally expected in th e criteria set out in Baxter against Rose . There is no merit to the complaint that -- that M r. Komisar’s representation was defective.

A.

The defendant first complains that Mr. Komisar failed to object to c ert ain remarks Vera Th ompson made during her testim ony, which included the following:

* When asked if she picked o ut the defendant’s p i cture from the photographic lineup, Thompso n replie d she did and then stated, to the defendant, “You know you di d it, boy. He did it.”

* When asked how often she would see the defendant w hen he lived in her apartmentcomplex, Thompson replied, “W ell, we -- most nigh [sic] everyday

because -- uh -- not putti ng him down or an ything; but, he -- he was a Crack head. And, C rack heads can’t stay i n the house all day.”

* At the c oncl usion of direct examination, following a pause in the proceedings, Thompson rem arked, without pro mpting, “Why did you do it?”

* When asked on cross-examination whether she recogniz ed or knew who was with the defendant on the night of the murder, Thompson replied, “No. And that -- that’s scarey [sic ], too. See, you really

need to tell us who the other man was so you w on’t take the rap by yo urself.” The record fails to reflect any objections,requests for curativ e instructions, or motions to strike these statements.

At the hearing on the motion for n ew trial, Mr. Komis ar testified he
r em embered Thompson offering numerous extemporaneous statements during her10

testimo ny. When asked whether he thought her remark s had any

effect on the jury, Mr. Komisar replied, “Vera Thompson had a g reat effect on the jury. I think Vera Thompson
was -- was the -- the most crucial witness for -- for the S tate. Now, as to those particular statements, whether those had an effe ct on a jury, I wouldn’t -- I mean, she was a very powerful witness for the State.” Given that this was the extent of theevidence on whether Mr. Komisar was ineffective for failing to object to Thompson’s statements, the defendant’s argument must fail. The absence of evidence on this issue renders it “practicallyimpossible” to show the prejudice necessary to prove inef fective assistance
on this basis. See Strickland , 466 U.S. at 687. As the State points out, it is certainly possible that Mr. Komisar did not obj ect to Thompson’s statements for fear his objection would have emph asized her comments and called more attention to them. The defendant has notcarried his burden of show ing that Mr. Komisar’s repr esentation was deficient for

failing to object to the

se remarks and that this deficiency prejudiced

him.

B.

The defendant next argues that Mr. Komisar was ine ffectiv e because he failed to impeach Thompson’s credibili ty by questioning

her about her criminal r ecord. At the hearing on the motion for new trial, Mr. Komisar t

estified that he wa s unsure whether Thompson’s prior convic tions were the

typ e that could have been used for impeachmentpurposes. Because the recor d does notreflect the nature of Thompson’s prior conv i ctions, we cannot properly evaluate this issue in light of Mr. Komisar’s testimo ny. For all we know, Thompson’s convictions would have been prohib ited f rom introduction for impeachment purpos es by the Tennessee Rules of Ev idence.
Despite this, the record reflects that Mr. Komisar engaged in great efforts to impeach Thompson on grounds other than he r criminal record. Du ring her trial11

testimo ny, Thompson admit ted to once hav

ing a seri ous alcohol and drug abus e problem. She also admitted to taking multiple medications for various ailments and to drinking beer at the time she witnessed the sho oting. Although Thompson testi fied that her doctor

told her she could drink beer w hile on her medication, Mr. Komisar called an exper t medical witness who testified that drinki ng beer while taking the medication Thompson w as taking would intensify the medication’s side effects, which include d dizziness and blur

red vision, and would greatly impair the patient’s vision. Despite this testimony, the jury st il l accredited Thompson’s testimony that she had no doubt the defendant was the man w ho attempted to rob Be vels and shot Martin. The defendant has not shown how further impeachmentby introducing evidence of Thompson’s prior convicti ons---whatever the nature of those convictions mig ht be---would cause t he jury to reject Thompson’s tes tim ony. Thus, because the defendant has no t shown prejudice, his argument must fail.12 C.

The defendant also argues that Mr. Komisar was ineffective fo r fail ing t o object to testimony regardi ng the defendant’s past drug use. The defense fil ed a motion in limine to exclude “[ a]ny references to any prior criminal conduct or bad acts by the Defendant.” The defendant does not cite---and our indepe ndent re view of the record does not disclose---a rul ing on this motion. At the close of the State’s evidence, the prosecutor

advised the court and the defense that in a pr etrial statement, the defendant had denied having a drug problem, but had admitted to using illegal drugs twice a week. The prosecutor stated that it w ould request a

jury-out hearing on the admissibil ity of that statement “shoul d that is sue come

up.” Su bsequently, du ring its presentatio n of proof , the defense introduced evidence of the defend ant’s good character, and on crossexamination, the prosecutor attempte d to impeach this evidence w ith questions regardi ng the defendant’s drug usage.

The defendant does not seem to take issue with the Stat e’s “mere impeachment” of defense witnesses b y reference to his prior drug usage. Rather, the defendant argues that “State counsel went beyond mere impeachment . . . to the extent that counsel for the State had the Defendant ex plaining the proper method i n which to smoke crack.”

The characterization of this questioning as “the proper method in which to smoke crack” is not quite accura te. The tri al transcript reflects that during his testimo ny, the defendant denied he had been using cr ack cocainearound the time of the
s hooting, but he admitted using crack cocaine at a previous ti me in his life. Th e prosecutor

asked, “When you would do crack coc aine, wou ld yo u explain to the ladies and gentleme n of the jury how you wo uld do crack cocaine? How did you do i t?” The defendant replied he smoked it. The prosecutor asked, “How did you smoke it? Can you explain that to them? They may not know.” The defendant replied, “Just hold up a lighter13

and light it up to a stem and put the stuff on there and just smoke it.” The prosecutor asked, “Like, to a pipe?” The defendant replied aff irmatively and added, “Sort of like smoking opium.” The defendant further explai ned that he had seen people on television smoking opi um.

Mr. Komisar failed to object during this line of questioning, but this failure d oes not render his assistance ineffective. The def endant has not proven that Mr. Komisar’s fail ure t o object c onstitu tes defi cient per forman ce. As sta ted previo usly, choosing not to ob ject may be a stra tegic decision to not undul y emphasize prejudici al testimo ny. The transcript from the motion for ne wtrial hearing seems to indicate that Mr. Komisar in fact had good reason not to object to this line of questioning;when asked why he did not object, Mr. Komisar did not answer, replying that the attorney/cli ent privilege prevented him from fully and accurately answering that ques tion. Asthe record stands, however, there is strong indic ation that strategy motiv ated Mr. Komisar’s decis ion notto object. Because this Court will not second-g uess strategic decisi ons, the defendant has not proven deficient performance.

Even so, by the def endant’ s own admission, he had previously used crack cocaine. As the State points out, “If the jury intended to use that fa ct against him, it would have done so re gardless of whether he chose to inhale it, smoke it, or inject it.” Thus,
even assuming that Mr. Komisa r’ s performance was deficient for fail ing to object, the defendant has not shown how he w as prejudiced.14 D.

The defendant also argues that the attorne y who represented him at his preliminaryhearing, Bobby Ballinger, rendered i neffective assistance because he fai led to obtain the su rveillan ce tapes from the Ph armart convenience store. Because Mr. Ballinger did not testify at the heari ng on the motion for new trial, the defendant failed to presentany evidence that might prove Mr. Ballinger performed deficiently and that this prejudiced him. Moreover, the Pharmart manager’s trialtestimony indicated that s he was not authorized to release surveill ance tapes to anyone other than a police officer, so ev en if Mr. Ballinger had tr

ied to obtain the surveil lance tapes, he would hav e been unable to do so personally. The defendant has not proven ineffective assi stance.

III.

The defendant argues that the trial court erred by failing

to gi ve curative instructions to the following remarks Thomps on made during her testimo ny: “You know you did it, boy.”; “[H] e [the defendant] was a Crack h ead.”; “Why did you do it ?”; and “See, you re ally need to tell us w ho the other man was so yo u won’t take the rap by yourself.”Because no objection or req uest for curative instr uction was made, this is sue is waived. T.R.A.P. 36(a). Even so, any resultin g error must be deemed harmless because the defend ant has n ot shown how these particular statements affected the jury’s verdict, especially cons ide ring that notwithstan ding these remarks, the thr ust of Thompson’s testimo ny was that t he defendant attempted to rob Bevels and murdered Martin. Tenn. R. Crim. P. 52(a).1 One of the concurri ng judges wrote that the bad f aith standard pronounced by the Youngblood majority should be appl ied, whereas the other concu rring j udge wrote that he did not be lieve that the Ferguson case was the proper case in which t o decide whether

“due process under the Tennessee Constitut ion requi res bad fait h on the part of the stat

e [i. e., the Youngblood standa rd] in all instanc es.” 15 IV.
Next, the defendant argues that Detective Roland’s failure to diligently procure the Pharmart surveillance tapes const it uted prosecutorial misconduc t and prejudiced his right to a fair trial. Citing State v. Marvin K. Ferguson , No. 03C01-9406- CR-00235, Washington County (Tenn. Crim. App. file d July 17, 199 7, a t Knoxville), appeal granted (T enn. March 23, 1998), the defendant argues tha t the police must preserve material evidence, including exculpator y evidence, and that

Detective Roland’s “lack of effort” in obtai ning the surveillance tapes “ directly resulted i n the tapes being erased before their retrieval,” which prejudiced his ability to prove his alibi.

In Arizo na v. You ngblood , 488 U.S. 55, 58 (1988), the U nited States SupremeCourt held that the prosecution’s failure to preserve ev idence potentially useful to the defendantmay

constitute a denial of due proces s of law, assuming the defendant
can prove the police acted i n bad faith. In a dissenting opi nion, three members of the Court dis ag reed that a “bad faith” standard w as appropriate, instead positing that the focus of the inquiry should be on the materiality of the ev idence, its potential to ex culpate, and the existence of other ev idence on the same point of contention. Id. at 67-70.

In Fer guson , the unpublished opinion reli ed upon by the defendant here, the special judge writing for t he panel r ejected the majority holdi ng in Youngblood , instead choosing to rely on the standard preferred by the Youngblood dissent. The two
o ther members of the Ferguson panel, however, each wrote separate concurrin g opinions, agreeing in the resu lt only, but disagr eein g with the special j udge on the application of Youngblood

. 1 Moreove r, in nume rous other opinions, two of which are2 Because the defendant relie s upon the specia l judge’ s opinion i n Ferguson , which omits a “bad faith” requirement, he does not even at tempt to show any evidence of bad faith i n the record.

16 published, this Court has followed the major ity opinion in Youngblood

. See, e.g. , State
v. Eldridge , 951 S.W.2d 775 (Tenn. Crim. App. 1997); State v. Jefferson , 938 S.W.2d 1 (Tenn. Crim. App. 1996); see also State v. Ricky Hill Krantz , No. 01C01-9406-CR-00207, Davidson County (Tenn. Crim. App. fil ed January 7, 1998, at Nas hvi lle); Robert Ll oyd Wiggins v. State , No. 03C01-9 60 5-CC-00191, McMinn Cou nty (Tenn. Crim. App. filed March 20, 1997, at Knoxville ), app. denied Tenn. 1997); State v. Jerry Doug las Franklin , No. 01C01-9510-CR-00348, Dav idson County (Tenn. Cri m. App. filed February 28, 1997, at Nashville), app. denied (Tenn. 1997). For these reasons, we question the defendant’s reliance on Ferguson

.

Under the Youngblood analysis, the defendant ’s a rgument must fail because there is no evidence that the police ac ted in bad faith in failing to s ecure the surveillance tapes. 2 Even assumingthat Ferguson was theproper standard to apply in this case, however, the defendant’ s argument still fails be cause not hing in the record establishesthat the surveillance tapes were either mat erial or e xculpato ry. Detecti ve Roland testified the Pharmart manager told him that while the s urveillance tapes reflec ted a time, they did not reflect whether the time was a.m. or p.m., and they did not reflect a date. Moreover, accordin g to the defendant and other defense witnesses, the defendant
was in the Pharma rt conveni ence store ( and thus on the

Pharma rt surve illance tapes) between 4:00 and 5:00 p.m., but the shooti ng in this case occurred bet ween 6:00 and 7:00 p.m., giving the def endant ample time to commit the crimes charged in this case
even if he was in fact at the conv enience store earlier that afternoon. Thus, contrary to the defendant’s assertions, the sur veillance tapes wer

e neither material nor

exculpatory because obtaining them would hav e don e littl e if a nything to establish a n alibi for the shooting.17 Further, even assu ming that the survei llance ta pes we re material and exculpat ory, nothing in the record est ablishes that it woul d have been possible for D etectiv e Roland to obtain th e tapes, even if he exercised due dilige nce. Dete ctive Roland testifi ed that he learned of the tapes’ ex istence on December 18 and that on December

21, he learned the tapes were no longer available because they had already been erased, taped over, or otherwise de stroyed. Nothing in the reco rd, however, establisheswhen the tapes were er ased, taped over, or otherw ise destroyed. In fact, it is possible that the tapes w ere erased, tap ed over, or otherwise destroyed before Detective Roland eve n learned of their existenc e.

V.
Finally, the defendant arguesthat the trial court err ed in denying his motion fora new trial because “newly discover ed evidence,”

i.e., a statement by Morris Swanson that he had witnessed the murder,requires a new tr ial. At thehearing on the motion for
new trial, Michael Gull ey, acase worker at the M ental Health Cooperativ e, testified that
one of his clients, Morris Swanson, lived at

the apartment complex wher e the murder

and attempted robbery occurred. According to Gulley, Martin was also a patient at theMental Health Coop erative, s o when the mu rder was r eported to th em, Gulley became concerned about Swanson and called him.Gulley testified that Swanson told him he had
seen “the whole thing” and had been robbed earlier that ev ening by the same men who18

shot Martin. According to Gulley, Swanson

told him after the defendant’s conv iction that “they’ve got the w

rong guy.”
Swanson, a schizophrenic on medic ation, a lso testified at the hearing on the motion for new trial. Sw anson admitted being robbed betw een 5:00 and 7:00 p.m . on December 13, but

h e repeatedly denied telli ng Gulley that “they had the wrong person.” Swanson also testified that h e did not kno w the name or the face of the man who shot Martin.

Contraryto the defendant’s argument, this ev idence does not

entitle him to a new trial. In order

to receive a new tr

ial on the basis of newly discovered evidence,
a d efendan t must demonstrate that he exerc ised reasonable diligenc e in seeking the evidence, that the evidence is mater ial, and that it wil l likely change the outcome of trial. State v. Nichols , 877 S.W.2d 722, 73 7 (Tenn. 1994). Even assumin g t hat the defendant could meet the first two prongs of this test, he has not shown a likeli hood of acquittal on retrial. As the trial c ourt recognized, Swans on’s testimony is not hel pful to the defendant: “[H]is testimony her e was very cl ear and extremely emphatic , that he did not see who did the mu rder. And I don’t know how you’re go ing to get hi m to say anything different from that.” Moreover, Gulley’s testimony that Swanson apparently told him he witnessed the murder and that the defendant was not the murder er is nothelpful to the defendant because it is sketchy at best. The jury here heard testimony from the defendant and other alibi witnesses that the defendant was not in the area at the time of the shooting and did not commit the crimes with which he was charged, but the jury still chose to believe the testi mony o f three eyewitnesses, eac h of whom claimed the defendant was the shooter. There is no reason to believ e that the hearsay

testimony of
a mental health case worker regarding statements hi s patientmade to him would change19

that, especially when considering that Swanson would deny ever making those statements. Accordingly, the trial c ourt properly denied the motion for new trial on this basis. See Nichols , 877 S.W.2d at 737.

VI.

The defendant has failed to show reversible error. Accordingly, his convictions and sentence ar e affirmed.

_______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge